McLennon v. York University [2012] OHRTD 10

Can a student file a claim of racial discrimination against a fellow student?

Facts

The student was a student at York University (named as the corporate respondent). In 2011, he filed an application of racial discrimination against the University, a fellow student and two professors. He claims that while taking a course at the respondent university, the fellow student refused to let him participate in a group assignment and used a racial slur to describe him. His application states that the two professors “failed to reasonably respond to his concerns and failed in their duties to organize group projects”.

An interim decision (McLennon v York University [2011 OHRTD 2128] )removed the two professors as personal respondents, using the Persaud factors[1]. The Tribunal concluded that “all of the allegations against the Personal Respondents are with respect to acts and /or omissions that occurred during the course of their employment and the University has agreed to assume responsibility for their conduct.”

The Tribunal then ordered the applicant to answer two questions within fourteen days:

Is Ms. Lam a proper respondent to the Application?

Do the allegations against Ms. Lam raise an issue of equal treatment with respect to “goods, services and facilities” under the Code?

This hearing deals with these two questions, which went unanswered by the applicant.

Issues

Is Ms. Lam a proper respondent to the Application?

Do the allegations against Ms. Lam raise an issue of equal treatment with respect to “goods, services and facilities” under the Code?

Decision

No

No

Reasons

See 2

The Tribunal found that the fellow student was “not providing services to the applicant as contemplated by the Code.” And that, as such, “the Code does not apply to allegations of discrimination between fellow classmates” (para 8). The Tribunal based its ruling on the reasoning provided in Mehidi v George Brown College, 2010 HRTO 1486, and quoted the following passage, taken from paras 4-6:

The Tribunal does not have a general power to evaluate relationships between individuals, or to inquire into all claims of unfairness or misbehavior. It hears applications that allege violations of the Code.

Under s.1, every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

There are no facts suggesting that the personal respondent was responsible for the provision of any educational services to the applicant. The Tribunal has found in similar circumstances that the Code does not cover allegations of discrimination or harassment made against fellow classmates: see Theisen v. Ontario (Attorney General), 2009 HRTO 1781 (CanLII) and Tohidy v McKenzie, 2009 HRTO 2264 (CanLII). Although under the Code, harassment by co-workers or co-tenants can give rise to claims against those individuals, there is no specific provision covering claims of harassment against fellow classmates.

[1] The factors are: 1) Is there a corporate respondent in the proceeding that also is alleged to be liable for the same conduct? 2) Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct or the personal respondent who sought to be removed? 3) Is there any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement? 4) Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make I appropriate to award a remedy specifically against that individual if an infringement is found? 5) Would any prejudice be caused to any party as a result of removing the personal respondent? (para 7)